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Davis Files Motion To Stop Trials

CHARLESTON — Even while impeachment trials are on hiatus after a decision by an all-appointed panel of justices, the federal case brought by Robin Davis — the former justice of the West Virginia Supreme Court of Appeals — is moving forward.

Attorneys for Davis filed a reply in federal court Tuesday in support of her motion for a preliminary injunction to stop her impeachment trial before the West Virginia Senate. The trial is scheduled for Oct. 29.

“With these impeachment proceedings, the defendants have attempted to sweep all popularly elected justices from the West Virginia Supreme Court of Appeals, thus depriving the citizens of West Virginia of their constitutionally guaranteed right to elect the judicial officers serving on the state’s highest court,” according to the filing. “The Supreme Court of Appeals has now conclusively held that these actions are unconstitutional.”

The reply comes nearly a week after an appointed panel of circuit judges acting as Supreme Court justices ruled in a decision that the impeachment of Workman violated the separation of powers between the judicial and legislative branches, and the House didn’t follow the rules of procedure it passed back in June to govern its impeachment procedures.

The House adopted 11 articles of impeachment Aug. 13 against Chief Justice Margaret Workman, and Justices Allen Loughry, Beth Walker and Davis. The House named all four justices in the final article of impeachment and Davis was named in an additional three articles stemming from spending more than $500,000 on office renovations and furnishing, and a scheme to overpay 10 senior status judges more than a statutory cap.

However, the appointed Supreme Court ruled Oct. 11 the Legislature did not have the authority to decide on the legality regarding senior status judges, and that the laws preventing overpayment of senior status judges were unconstitutional. That took those articles of impeachment off the table for Workman.

The ruling also potentially helps Davis and Loughry, who were both impeached on similar articles. Davis filed a motion Monday with the Supreme Court to be considered for part of Workman’s petition. Paul Farrell, the acting chief justice presiding over the four impeachment trials, issued a ruling Monday continuing all remaining impeachment trials indefinitely.

Tuesday’s reply filed in federal court addressed some of the issues raised by the state Supreme Court decision. The reply was submitted by Davis attorneys Lonnie Simmons and James Cole.

“The court determined that the impeachment proceedings violate fundamental requirements of separation of powers and due process set forth in the West Virginia Constitution,” they wrote. “In doing so, the court explicitly invalidated two articles of impeachment directed to both Justice Workman and Justice Davis as contrary to separation of powers principles and determined that all of the articles of impeachment were improperly entered in violation of due process.”

Davis announced her resignation from the Supreme Court on Aug. 14, the day after the House adopted the articles of impeachment. An effort to drop Davis from the impeachment trials failed after senators voted down a motion Sept. 11. Davis, already out of office, can still be convicted and senators can still vote to prevent her from seeking office or serving as a senior status judge.

Davis’ attorneys said if the Supreme Court grants her motion to be included in Workman’s writ of prohibition, she will drop the motion for a preliminary injunction.

“With no trial imminent, Justice Davis does not presently require preliminary injunctive relief from this court to avoid the irreparable harm that would result from allowing any trial to proceed,” her attorneys wrote. “If, however, the current situation should change, then Justice Davis may ask this court to adjudicate her preliminary injunction motion.”

Davis filed a federal civil rights lawsuit against Gov. Jim Justice, the House and Senate leadership and every member of the Legislature who voted for the articles against her or to continue her impeachment trial. Davis alleges that the Legislature violated her constitutional rights of free speech, due process, equal protection and violated the state Constitution’s requirement for separation of powers and judicial independence.

The parties in the case were originally scheduled to meet Tuesday about the motion for preliminary injunction, but Chief Judge Thomas Johnston issued an order continuing the hearing.

One impeachment trial has already been completed. The Senate voted not to convict Justice Beth Walker after two days of trial ending Oct. 2. Loughry’s impeachment trial was scheduled Nov. 12.

Loughry was convicted Oct. 12 of 11 felonies in federal court, including one count of mail fraud, seven counts of wire fraud, one count of witness tampering and two counts of making false statements the FBI. He could face up to 190 years in federal prison when sentenced in January 2019 and up to $2.75 million in fines.

Another former justice, Menis Ketchum, resigned July 27 before the House drafted articles if impeachment. He will be sentenced in December after pleading guilty in federal court to one count of wire fraud.

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